Divorce & Legal Separation in New Mexico
Key Parts of your Case to Think About
In New Mexico, there is no difference in the steps necessary to obtain a divorce or legal separation. Unlike some states, you do not need to obtain “legal separation” before you can get a divorce. Just living in separate households or no longer having intimate relations does not mean you are “legally separated”. That status requires a court order. NM Divorce & Custody Law LLC in Albuquerque, NM can help you decide if a divorce or legal separation is the best choice for you and your family.
There are a few differences between divorce and legal separation:
- Divorce: at least one spouse must reside in New Mexico for at least six months immediately prior to filing the petition, but there is no six month requirement to file a petition for legal separation.
- After the judge enters a Final Decree of Legal Separation, you are still legally married, meaning you cannot marry someone else. Whereas after a divorce, you are single again and can remarry.
Four Main Topics Addressed in Divorce or Legal Separation
In general every divorce or legal separation in New Mexico must address the following:
- Minor children – custody, visitation & child support
- Spousal support / alimony
By addressing these topics, your dissolution of marriage will be finalized once an agreement on each item has been reached.
Property must be identified, characterized (as “separate” or “community”) and divided between the spouses. “Real property” consists of real estate that has a deed, such as a house, condominium, townhouse, land, mineral rights and water rights. “Personal property” is pretty much everything else such as vehicles, motorcycles, boats, RVs, pets or livestock, etc. – things that normally have a title – as well as personal possessions like clothing, appliances, electronics, jewelry, art work, collectibles and more.
Before determining who will keep what property, the property must be identified and characterized as either separate or community. The names on the deed or title are not necessarily definitive in saying whether the item is separate or community property. A divorce lawyer at NM Divorce & Custody Law LLC in Albuquerque, NM can help you sort through your property.
Separate Property: Property you owned before you were married or that you received by gift or inheritance during the marriage is your separate property. The proceeds of separate property remain separate property. For example, if you owned a house before marriage and you rented it out while married, the rent money continues to be your separate property so long as you didn’t use the rent money to pay for community debts or to put toward purchasing community property. You have to be able to trace or otherwise show exactly what rent money came from the rental house.
Community Property: All property acquired while married is presumptively community property, including retirement benefits that build up during the marriage. Income earned after the wedding is also considered community property, even if only one spouse is employed. The person claiming something is separate property, or the proceeds of separate property, has the burden of proving it.
Co-mingled or Transmuted Property: Sometimes couples mix-up separate and community property so much that it cannot be traced. For example, the wife inherits $50,000. She deposits the money into a joint bank account with her spouse and they use the money to renovate the kitchen in the community property home, take a vacation with the money and pay off the spouse’s motorcycle loan. By doing this with the money, the wife has co-mingled her separate property inheritance with community expenses to the point where she probably transmuted the separate property into community property. As a reverse example, the husband owns several acres of unimproved mountain property before marriage. Several years after the wedding, the couple decides to build a vacation cabin. The use their joint savings and obtain a bank loan for the construction. After the cabin is built, the loan is converted to a traditional mortgage. Both spouses are listed on the mortgage and the deed to the cabin (which also probably includes the underlying land). The loan is paid off during the marriage with wages earned by both spouses. Therefore, the land and the cabin are probably both now community property and community debt.
Debt owed before marriage is separate debt and debt incurred after marriage is community debt. This area can get murky because many people have credit card debt before marriage that they continue to pay down after the wedding with income earned after marriage. The person’s name on the credit card is not conclusive as to whether the debt is separate or community. The more important factor is when the debt was incurred, before or after the marriage.
Student loans are usually considered separate debt, even if partially taken out after marriage. One exception is if part of the student loan was used for post-marriage living expenses, as opposed to paying only the tuition, books and other school fees. To the extent that you can prove the amount of the loan used for joint living expenses, that amount might be characterized as community debt. If you have questions regarding separation of debt, contact a divorce lawyer at NM Divorce & Custody Law LLC in Albuquerque, NM.
Interim Allocation or Interim Division
The rules of court require the parties to exchange preliminary financial documents early on in a divorce or legal separation case. The documents show current income and the average of certain fixed monthly expenses. These figures are inputted on a Monthly Income & Expenses Statement (I&E). The purpose of doing this threefold:
- To pool the money;
- To pay the bills;
- To shift the presumption from community to separate property and debt for things purchased after entry of the Interim Allocation order.
Any money left after paying the allowed fixed monthly expenses gets split 50/50 between the husband and wife. The parent with whom the children spend the majority of time gets an additional percentage of the net combined income as “temporary” or “interim” child support. Essentially the goal of Interim Allocation or Interim Division is to level the financial playing field while the divorce is taking place. When you have questions regarding Interim Allocation or Interim Division, a divorce lawyer at NM Divorce & Custody Law LLC can help.
Thinking of Getting Divorced or Legally Separated in New Mexico?
Deciding to get a divorce or end your relationship with your partner is a hard choice to make. It can be a scary and complex process to go through in order to legally change your marital / relationship status. The divorce attorney at NM Divorce & Custody Law LLC holds over 25 years experience easing the legal pain of divorce or legal separation for couples. She understands the process and can mediate terms of the divorce on your behalf and even act as a neutral settlement facilitator for both you and your spouse. Every relationship is unique. This is your divorce and your family. Contact a divorce attorney today and find out how you can begin the next chapter of your life.
Call NM Divorce & Custody Law LLC in Albuquerque today at 505-881-2566 to schedule an appointment with a divorce attorney.
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